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Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (SI/2012-7)

Regulations are current to 2024-02-20 and last amended on 2014-01-01. Previous Versions

Part IV: Summary Conviction Appeals and Extraordinary Remedies [Rules 40-49] (continued)

Rule 40: Summary Conviction Appeals[Code, ss. 813, 830(1)] (continued)

Processing Appeals

  •  (1) Upon receipt of a notice of appeal, the clerk of the appeal court shall forthwith transmit a copy of it to the clerk of the trial court in the region or county in which adjudication was made.

Transmission of Exhibits and Documents
  • (2) Upon receipt of a notice of appeal, the clerk of the trial court, unless it is otherwise ordered by a judge, shall transmit forthwith to the clerk of the appeal court all documents and exhibits which were before the trial court, including the information, all notices of motion or applications, motion records and facta.

  • (3) Notwithstanding subrule (2), currency, valuable securities, jewellery, narcotics and exhibits which are inherently dangerous (as for example, explosives) shall not be transmitted to the clerk of the appeal court unless material to the issues raised on appeal and a judge so orders.

Transmission of Copy
  • (4) It shall be sufficient under subrule (2) for the clerk of the trial court to transmit to the clerk of the appeal court a certified copy of the information upon which trial proceedings took place, unless otherwise ordered by a judge.

  • (5) Upon receipt of the documents and exhibits from the trial court, the clerk of the appeal court shall make a copy of all the documents and exhibits that are capable of reproduction, and notify the appellant that they are available to be included in the appeal book to be prepared by counsel pursuant to rule 40.10.

  • (6) Where the exhibits transmitted are voluminous, the clerk of the appeal court may notify the parties to the appeal that an application for directions will be made to a judge regarding the exhibits, pursuant to subrule 40.03(2).

Transcripts and Agreements Respecting Evidence

Certificate Respecting Evidence
  •  (1) Except in the case of appeals to which subrules (3) and (4) apply, appeals in which counsel will be filing an agreed statement of fact in relation to the evidence pursuant to subrule 40.08(6) or (7) as the case may be, or where otherwise directed by the clerk of the appeal court, the appellant shall, at the time the notice of appeal is filed, furnish a certificate in Form 2C from each court reporter who took the evidence stating that copies of the transcript as required by these rules have been ordered.

  • (2) Where the appellant is unable to obtain a certificate in Form 2C from each court reporter by the time of filing the notice of appeal, the appellant may file the notice of appeal, the certificates in Form 2C that have been obtained and written confirmation that all other transcripts have been ordered. Where all certificates in Form 2C are not filed at the time the notice of appeal is filed, the appellant shall file the outstanding certificates in Form 2C within 30 days of filing the notice of appeal.

Where Provisional Certificate Granted
  • (3) Where an appellant has been granted a provisional certificate under the Legal Aid Services Act, 1998 which is limited to the filing of a notice of appeal or to the filing of a notice of appeal and the making of an application for release from custody pending appeal, the counsel of record acting under such certificate may file the notice of appeal without ordering the transcript, but when a legal aid certificate authorizing the carrying on of the appeal is granted, the counsel shall furnish the certificates required under subrule (1) within 15 days from the granting of such legal aid certificate, subject to subrule 40.08(2).

Where No Provisional Certificate Granted
  • (4) Where an appellant has applied for a certificate under the Legal Aid Services Act, 1998, but no provisional certificate has been granted, he or she shall file, at the time of filing the notice of appeal, proof of such application, and may lodge the notice of appeal without ordering the transcript or filing certificates of the court reporter, but when a legal aid certificate authorizing the carrying on of the appeal is granted, the counsel shall furnish the certificates required under subrule (1) within 15 days from the granting of such legal aid certificate subject to subrule 40.08(2).

  • (5) Within 15 days of receipt of the final decision of the area committee refusing the issuance of a legal aid certificate, the appellant shall furnish the certificates required under subrule (1).

Agreed Statements of Fact
  • (6) In appeals under s. 813 of the Code, where the facts are not in dispute, an agreed statement of facts served and filed within 30 days of the filing of the notice of appeal may take the place of the transcript of trial evidence.

  • (7) In appeals under s. 830 of the Code, where the facts are not in dispute, an agreed statement of facts served and filed within 15 days of the filing of the notice of appeal pursuant to subsection 830(2) of the Code may take the place of the transcript of trial evidence.

  • (8) Despite subrules (6) and (7), where an agreed statement of facts has been served and filed, the appellant must serve and file a transcript of the reasons for judgment, reasons for sentence, and full submissions and any ruling pertaining to the issues under appeal, and if there is an appeal of the sentence, all submissions and evidence called at the sentencing hearing.

  • (9) Where the appellant intends to file an agreed statement of fact, counsel may serve and file a written notification that they intend to do so at the time of filing the notice of appeal, without filing a Certificate in Form 2C.

  • (10) Where the parties have not filed an agreed statement of fact within 45 days of filing the notice of appeal pursuant to s. 813 of the Code, the appellant must serve and file a Certificate in Form 2C within 60 days of filing the notice of appeal unless otherwise ordered by a judge.

  • (11) Where the parties have not filed an agreed statement of fact within 15 days of filing the notice of appeal pursuant to s. 830 of the Code, the appellant must serve and file a Certificate in Form 2C within 30 days of filing the notice of appeal unless otherwise ordered by a judge.

  • (12) Where the appellant cannot comply with the 15-day period mentioned in subrule (7), and applies for an extension of time under rule 3.02, the judge hearing the application or determining the application in chambers on consent shall consider whether the 15-day period mentioned in subrule (7) is reasonable in the circumstances, and whether the proper administration of justice would benefit if this period were to be extended.

Contents of Transcripts for Conviction Appeals
  • (13) Unless otherwise ordered by a judge in accordance with rule 2.01, there shall be omitted from all transcripts of evidence:

    • (a) all opening remarks by the prosecutor;

    • (b) all argument on pre-trial motions or applications made at trial, excepting a notation that an application or motion was made (the ruling of the summary conviction court shall be transcribed), unless a ground of appeal to be argued relates to the pre-trial motion or application, in which case the transcript of the argument must be included in the transcript;

    • (c) all objections to the admissibility of evidence, excepting a notation that the objection was made (the ruling of the summary conviction court shall be transcribed), unless a ground of appeal to be argued relates to the ruling on the admissibility of evidence, in which case the transcript of the argument must be included in the transcript; and,

    • (d) the closing argument of the parties, their agent(s) or counsel unless a ground of appeal involves the reasons for judgment including, but not limited to grounds alleging an unreasonable verdict, misapprehension of evidence, a failure to properly apply the judgment in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), a failure to consider relevant evidence and the inadequacy of the reasons given.

Additional Portions of Transcript
  • (14) An order for the inclusion in the transcript of any portion of the proceedings referred to in subrule (13) may be made without the attendance of counsel of record, upon filing the written consent of counsel of record for all parties.

  • (15) Any order for the inclusion in the transcript of any portion of the proceedings referred to in subrule (13) shall be sent to the court reporter within 5 days of the order having been granted, and a copy of the order shall be provided to the counsel of record for all parties, together with confirmation that the order has been sent to the court reporter.

  • (16) Everything that occurred following a finding of guilt shall be transcribed for use on the hearing of the appeal whether the appeal is against the finding of guilt or conviction and sentence or is against the sentence only.

Contents of Transcripts for Appeals against Sentence
  • (17) With respect to appeals as to sentence only:

    • (a) where there was a plea of guilty at the opening of trial before any evidence was taken, the transcript shall include the entire proceedings before the court, including the statement of the prosecutor, any evidence as to the facts, any submissions of the prosecutor for the Crown or the counsel for defence, and the reasons of the summary conviction court as to sentence;

    • (b) where the original plea was one of not guilty, and was followed by the adducing of evidence, unless otherwise ordered by a judge, the parties shall make every effort to agree on a statement of facts in accordance with subrule (6) or (7) as the case may be. Where the appellant cannot comply with the time limits set out in subrule (6) or (7) as the case may be, the appellant may seek an extension of the time pursuant to rule 3.02; and

    • (c) in the event of difficulty in settling the statement of facts, counsel for either party may, on notice, attend upon a judge in chambers for assistance. In the event of a failure to agree as to the facts, the provisions of subrules (1) and (10) to (12) apply.

Completion of Transcripts
  • (18) Upon signing a certificate, each court reporter shall proceed with reasonable diligence to prepare and certify the transcript. All transcripts shall be prepared no longer than 90 days after the date the transcript was ordered.

  • (19) If the transcript has not been completed within 90 days from the date the transcript was ordered, the court reporter shall notify the parties to the appeal and the clerk of the appeal court, in writing, of the reason for the delay, and the date upon which the transcript will be prepared forthwith.

  • (20) Upon completion of the transcript, the court reporter shall forthwith notify the parties to the appeal and the clerk of the appeal court, in writing, that the transcript has been completed, by filing a Certificate in Form 2D, which shall include the date(s) to which the transcript relates.

  • (21) The Appellant shall serve on the respondent and all other parties to the appeal, and file together with proof thereof, a copy of the transcript within 30 days of receipt of a Certificate in Form 2D from each court reporter responsible for preparing a portion of the transcript.

  • (22) Unless an appeal has been wholly abandoned, after a transcript has been ordered, the completion of the transcript shall not be suspended nor the order countermanded except pursuant to an order of a judge made in accordance with rule 2.01.

Costs Sanction for Unnecessary Evidence
  • (23) In considering whether to award costs on an appeal under section 826 or subsection 834(1) of the Code, a judge may consider whether evidence has been transcribed or exhibits reproduced unnecessarily.

  • SI/2014-5, ss. 23(E), 32(E)

Amendment of Notice of Appeal

Supplementary Notice to be Served and Filed
  •  (1) A notice of appeal may be amended without leave, before the appellant’s factum has been filed, by serving on the parties on whom the notice was served a supplementary notice of appeal in Form 2A and filing it with proof of service.

Argument Limited to Grounds Stated
  • (2) No grounds other than those stated in the notice of appeal or supplementary notice of appeal may be relied on at the hearing of the appeal, except with leave of the judge hearing the appeal.

Relief Limited
  • (3) No relief other than that sought in the notice of appeal or supplementary notice of appeal may be sought at the hearing, except with the leave of the judge hearing the appeal.

Appeal Books

Service and Filing
  •  (1) The appellant, within 15 days after receiving notice that the transcript of evidence is ready, or where a transcript of evidence is not required on appeal, within 30 days after filing the notice of appeal, shall, unless otherwise ordered by a judge, serve on the respondent and any person entitled by order of a judge to be heard on the appeal, a copy of an appeal book and, at such time, shall file proof of service of the appeal book and a legible copy of the appeal book.

Where the appellant is not represented by counsel
  • (2) Where the appellant is not represented by counsel, a judge may require the respondent to prepare the appeal book.

Contents of Appeal Book
  • (3) The appeal book shall contain, in consecutively numbered pages arranged in the following order, a copy of:

    • (a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;

    • (b) the notice of appeal and any supplementary notice of appeal;

    • (c) any direction or order made with reference to the appeal;

    • (d) the information, including all endorsements thereon or as adjuncts thereto;

    • (e) the formal order or decision appealed from, as signed and entered, if any;

    • (f) the reasons for judgment, if not included in the transcript of proceedings;

    • (g) any order for release from custody pending appeal;

    • (h) all documentary exhibits filed at the trial that the parties have not agreed to omit, arranged in order by date or, where there are documents having common characteristics, arranged in separate groups in order by date;

    • (i) all notices of application filed at or before the trial;

    • (j) all maps, plans, photographs, drawings and charges that were before the summary conviction court and are capable of reproduction that the parties have not agreed to omit;

    • (k) the agreed statement of facts, if any;

    • (l) where there is an appeal as to sentence, the pre-sentence report, the criminal record of the appellant, and any exhibits filed on the sentencing proceedings;

    • (m) the certificates respecting evidence referred to in subrule 40.08(1).

Non-Compliance with Rules
  • (4) The clerk of the appeal court may refuse to accept an appeal book which does not comply with this rule or is not legible and the appeal book shall not be filed except by leave of a judge.

Relief from Compliance
  • (5) Where compliance with this rule would cause undue expense or delay, a judge may give special directions.

  • SI/2014-5, s. 24

Facta

General Requirement
  •  (1) Except in appeals in writing under rule 40.15 or except where a judge has made an order under subrule 40.03(2), all parties to the appeal and persons who have been granted the right to be heard shall deliver a factum to be entitled and described on its cover as “Appellant’s Factum”, “Respondent’s Factum”, “Intervenor’s Factum”, or as the case may be.

Signatures
  • (2) All facta shall be signed by a counsel or on a counsel’s behalf by someone specifically authorized to do so or, where a party is not represented by counsel, by the appellant or respondent, as the case may be, and the signature shall be followed, where applicable, by the typed name of the counsel.

Non-Compliance with Rules
  • (3) The clerk of the appeal court may refuse to accept a factum which does not comply with this rule as to timing, form or content or is not legible and the factum shall not be filed except by leave of a judge.

Appellant’s Factum
  • (4) An appellant shall prepare an “Appellant’s Factum” not exceeding 20 numbered pages in length, excluding the schedule referred to in paragraph (5)(f) and, within 90 days of receiving the Court Reporter’s Completion Certificate under subrule 40.08(20), shall file a copy, together with proof of service thereof, on all other parties and persons who have been granted the right to be heard on the appeal.

  • (5) Except in appeals from sentence only, the appellant’s factum shall consist of:

    • (a) Part I, entitled “Statement of the Case”, which shall contain a statement identifying the appellant, the court in which the proceedings arose, the nature of the charge or charges, the result in that court and the nature of each order to which the appeal relates;

    • (b) Part II, entitled “Summary of the Facts”, which shall contain a concise summary of the facts relevant to the issues on the appeal, with such references to the evidence by page and line, or paragraph, as the case may be, as may be necessary;

    • (c) Part III, entitled “Issues and the Law”, which shall contain a statement of each issue raised, immediately followed by a concise statement of the law and any authorities relating to that issue;

    • (d) Part IV, entitled “Order Requested”, which shall contain a statement of the order that the court will be asked to make;

    • (e) Part V, entitled “Time Estimates”, which shall contain the appellant’s time estimate for oral submissions for:

      • (i) each appellant,

      • (ii) each respondent, and,

    • (f) a schedule, entitled “Authorities to be Cited”, which shall contain a list of the authorities (with citations) to which reference was made in Part III and in the order in which they there appear in paragraphs numbered consecutively throughout the factum.

Respondent’s Factum
  • (6) A respondent shall prepare a “Respondent’s Factum” not exceeding 15 numbered pages in length, excluding the schedule referred to in paragraph (7)(f), and shall file, not later than 10 days before the week the appeal is scheduled to be heard, a copy, together with proof of service thereof on all other parties and persons who have been granted the right to be heard on the appeal.

  • (7) Except in appeals from sentence only, the respondent’s factum shall consist of:

    • (a) Part I, entitled “Respondent’s Statement as to Facts”, which shall contain a statement of the facts in Part II of the appellant’s factum that the respondent accepts as correct and those facts with which the respondent disagrees and a concise summary of any additional facts relied on, with such reference to the transcript evidence by page and line or paragraph, as the case may be, as is necessary;

    • (b) Part II, entitled “Response to Appellant’s Issues”, which shall contain the position of the respondent with respect to each issue raised by the appellant, immediately followed by a concise statement of the law and the authorities relating to that issue;

    • (c) Part III, entitled “Additional Issues”, which shall contain a statement of any additional issues raised by the respondent, immediately followed by a concise statement of the law and the authorities relating to that issue;

    • (d) Part IV, entitled “Order Requested”, which shall contain a statement of the order that the court will be asked to make;

    • (e) Part V, entitled “Time Estimates”, which shall contain the respondent’s time estimates for oral submissions for:

      • (i) each respondent,

      • (ii) each appellant, and

    • (f) a schedule, entitled “Authorities to be Cited”, which shall contain a list of the authorities (with citations) referred to in the order in which they appear in Parts II and III in paragraphs numbered consecutively throughout the factum.

  • (8) The facta shall be printed on good quality white paper 216 millimetres by 279 millimetres in size, and the text shall be printed, typewritten, written or reproduced legibly on one side only, with double spaces between lines, except for quotations which may be single spaced, and margins of approximately 40 millimetres on the left-hand side.

  • (9) The characters used shall be at least 12 points or 10 pitch size.

  • (10) Back sheets and covers shall be of 176 g/m2 cover stock.

  • (11) The appellant’s factum shall be bound front and back in blue cover stock, the respondent’s factum shall be bound front and back in green cover stock, and the intervenor’s factum shall be bound front and back in grey cover stock.

Appeals from Sentence Only
  • (12) For an appeal from sentence only, the factum submitted by the appellant (other than the Attorney General) shall be in Form 19.

  • (13) Where the Attorney General is the appellant, such changes shall be made in the form of the factum as may be required.

  • SI/2014-5, ss. 25, 33(E)
 

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